Explained: Mechanisms for Recovering Properties Confiscated Under the Anti-Terrorism Court

From the 2011 uprising until Bashar Al-Assad’s fall on December 8 2024, the Assad regime severely restricted property and housing rights through numerous laws targeting the seizure of political opponents’ assets. 

Among the most notable of these was Anti-Terrorism Law No. 19 of 2012, which failed to provide a clear definition or criteria for terrorism. This allowed for political opponents to be accused of terrorism, subjected to maximum penalties, and have their movable and immovable assets confiscated. The Anti-Terrorism Court, established under Law No. 22 of 2012, was tasked with enforcing these rulings, freezing the defendants’ assets, and transferring them to the public treasury.

The Anti-Terrorism Court exemplified a significant deviation from standard judicial procedures and the legal foundations outlined in the Code of Criminal Procedure. The court’s processes for investigation and trials were handled by military officers, disregarding principles of fair trials, the defendants’ right to defend themselves, and their access to the charges against them. The court also lacked proper oversight of procedural integrity. Furthermore, it allowed for defendants to be convicted in absentia, their properties confiscated, and the rulings enforced without the right to appeal the verdicts.

With the regime’s collapse, questions arise about the urgent need to abolish these exceptional courts and their governing laws and to compensate those affected. There are three potential methods to revoke these laws:

1. Enacting new legislation

This first approach involves the new legislative authority (after electing a new Parliament) issuing a law explicitly repealing these regulations. However, this repeal would apply only to future cases since laws cannot be retroactive, following the principle of non-retroactivity. This principle ensures that laws take effect immediately upon issuance but do not affect past events to avoid infringing on acquired rights. Any law applied retroactively would violate this principle. Therefore, individuals whose properties were confiscated under these rulings would not automatically regain them.

2. Challenging the constitutionality of the laws

The second approach is to challenge the constitutionality of Laws No. 19 of 2012 and No. 22 of 2012 before the Supreme Constitutional Court. These laws can be deemed unconstitutional as they violate the defendants’ right to a fair trial, such as the right to be informed of the charges, respond to them, and undergo a proper in-person trial. The laws also allow for harsh penalties in absentia without granting the right to contest the ruling or appeal.

The Supreme Constitutional Court is an independent judicial body based in Damascus, composed of 11 judges. Its responsibilities include reviewing the constitutionality of laws and decrees, offering opinions on the constitutionality of draft laws, overseeing presidential elections, and prosecuting the president for high treason. However, the court’s current composition lacks credibility, as its members were appointed by the deposed president, undermining judicial independence and the separation of powers.

Nonetheless, Article 147 of the 2012 Syrian Constitution provides two avenues for challenging the constitutionality of these laws:

• Through litigation: A party involved in a criminal case before the Court of Cassation can argue that the Anti-Terrorism Court’s ruling against them is unconstitutional. The Court of Cassation can then refer the issue to the Supreme Constitutional Court to rule on the law’s constitutionality.
• Through government action: The new Syrian government can form committees to review unconstitutional laws and refer them to the Supreme Constitutional Court for repeal.

If the Supreme Constitutional Court repeals a law, the repeal applies retroactively. According to Article 49 (d) of Law No. 7 of 2014 governing the Supreme Constitutional Court, any judgments issued under an unconstitutional law are considered null and void. The court’s president must notify the public prosecutor to take necessary action, which includes nullifying all related rulings, penalties, and property confiscations.

3. Establishing a national programme for restitution

Given the widespread politically motivated confiscations of real estate through legal means, a third option is to incorporate the restitution process into a national programme dedicated to returning confiscated or auctioned properties to their rightful owners. Such a programme, supported internationally but implemented locally, would focus on properties seized under the Assad regime’s laws or through extralegal means. Specialised committees could investigate each case, restore properties to their owners, or offer fair compensation.

Challenges 

A significant issue arises with retroactively repealing the law, particularly concerning properties confiscated under Anti-Terrorism Court rulings that have since been sold. Law No. 26 of 2023 allowed for the disposition of confiscated movable and immovable properties. It authorised the ministries of Agriculture and Finance to transfer ownership of such properties to other public entities, lease them, or sell them, depositing the proceeds into a special account within the public treasury.

The recovery of these properties requires referencing ministry records to determine their status. Buyers who acquired these properties in auctions knowing the properties were confiscated under Anti-Terrorism Court rulings could not claim good faith.  

Conclusion

The path to recovering confiscated properties includes legislative amendments, constitutional challenges, or establishing a restitution programme. Each approach has its complexities, yet all aim to restore justice, uphold property rights, and compensate those affected by years of systematic confiscations under unjust laws.